Making Attorneys Accessible to Family Law Litigants: 2011 ATTORNEY FEE REVISIONS TO THE FAMILY CODE

Posted By Thurman Arnold, CLFS

December is new legislation month at the Enlightened Divorce Blog™
presented by southern California Family Law Attorney Thurman W. Arnold.
My goal is to inform you well, and early on, on any number of topics that
will improve your outcome in your family law matters and hopefully to
help you to reach results that are fairer for you, your spouse or ex-partner,
your children, and your blended and extended families.

Effective January 1, 2011, a very important change to the rules that family
courts must apply in deciding whether and when to award attorney fees
to spouses (and domestic partners) who may have a relative inability to
access the funds necessary to secure justice becomes effective.

This is revised
Family Code section 2030. It is a welcome and much needed change in the California law impacting
attorney fee awards in proceedings that take place in Family Courts. It
is intended to assist parties who historically have been the "out
spouse" or "out partner" in marriages and domestic partnerships,
by reason of the fact that they may lack independent wealth or assets,
or may not during the relationship have managed the community property,
or who are otherwise marginalized in terms of access to such funds as
are required to conduct litigation and protect their interests because
one spouse acted first and grabbed all the funds.

Without money people cannot hire competent matrimonial law attorneys.
This effectively created an imbalance of power that family court judges
were too often not redressing (otherwise there would have been no need
for the revisions).

As a result of the Elkins Task Force's year long study, which included
obtaining commentary from jurists, lawyers, and family law specialists
among others, the legislature has declared that the times when one spouse
was able to grab or control community funds and so starve the other out
in the course of adversary litigation, are ending.

Family Code section 2030 changes this playing field importantly by minting
new judicial policies that include:

Facilitating access to counsel by parties
early on in the proceedings should be encouraged, and attorney fee awards help
to accomplish this. This is because
cases are more likely to settle when people begin with a parity of access to resources, and settlement
is always the ultimate goal. FC §2030(a).

Courts must now make findings on whether an award for attorney fees and costs is appropriate, including
based upon the question whether there is a disparity in access to funds
to retain counsel, and whether one party is able to pay for the legal
representation of both parties. FC §2030(b). This revision directs
trial courts to apply a variation of the
disparity of earnings analysis that was first expressed in Marriage of Hatch (1985) 169 Cal.App.3d
1213, an appellate decision that some trial courts had ignored. Relative
access measured in terms of such disparity is now key. "Disparity"
implies 'a great distance or gap.'

The California Judicial Council is directed, by January 1, 2012, to promulgate
and adopt
state-wide court rules in order to implement this directive in terms of what information is to
be submitted to court's to support attorney fee requests.

From an experienced family lawyer's point of view, my take on this
revision is that its greatest value is in telling family court judges
that attorney fee awards in appropriate cases are to be the standard and
not the exception. I suspect, however, that judges and commissioners will
remain overly conservative.

From a family sciences point of view I believe it is a significant improvement
in the law if we are to equalize power between spouses and, frankly, genders.
More often than not women have been on the losing side of the attorney
fee question in the sense that they have not controlled community or other
resources to the same extent, and in the same manner, as many of their
husbands. I think that it will advance woman's rights in family law
litigation.

I do not want to overstate the power of this revision. It is a move in
the right direction, but nonetheless something of a baby step. We will
await appellate court pronouncements as to what standards family courts
should apply as trial courts are reversed for being too timid or parsimonious,
or even too generous. The California Judicial Council is given to 2012
to propose state wide guidelines that will give direction to courts, and
that may help to foster uniformity between different venues, in coming years.

I thought my PARTNER had REGISTERED our DOMESTIC PARTNERSHIP but she says she didn't. Do I have rights?

Posted By Thurman Arnold

Q. I have been living with my girlfriend for four years. Three years ago
we agreed to enter into a domestic partnership and filled out and signed
the registration papers. She told me she had filed them with the Secretary
of State. We separated last month, and when I asked her to help me financially
and to divide our property she said I have no rights because she never
mailed in the registration and we aren't legally RDPs. Is she right?

Jeff, Cardiff, CA

What Is a "Putative" Domestic Partner?

She may not be right if you can meet the legal test to qualify as a "putative
domestic partner."

California Family Code section 2251 sets forth remedies regarding the division of property in cases of annulments,
or where a marriage turns out to be void or voidable because of some legal
defect (for instance, where the parties could not be legally married because
one party had not properly obtained a termination of an earlier marital
status before entering the new union). In cases of void or voidable marriages,
no marital rights or obligations actually attach
unless one party can establish what is known as
putative spouse status.

The putative spouse doctrine was intended to protect "innocent spouses"
- the partner who reasonably believes the parties were married - as long
as their is an objective basis in reality for that person to have held
that belief.

This doctrine now applies equally to putative domestic partners.

For one spouse or domestic partner to qualify for this protection there
must have been an attempted compliance with the procedures for creating
a valid marriage or registered domestic partnership. Sincerely believing
that a marriage or domestic partnership existed by itself is not enough.
Do you have a copy of the registration document that was never filed?
This is exactly the type of evidence that would be most useful in establishing
an objective basis for having believed you were registered.

In a very similar case -
In re Domestic Partnership of Ellis & Arriaga (2008) 162 Cal.App.4th 1000 - Darren Ellis and David Arriaga complied
with the first step in the procedure for creating an RDP, the completion
of the registration papers. Arriaga was supposed to mail the registration
to the Secretary of State, but he never did. When Ellis filed a Petition
to Dissolve the Domestic Partnership, Arriaga asked the trial court to
dismiss Ellis' action on the ground that no RDP in fact existed. The
trial court agreed with Arriaga, but the appellate court reversed the
trial court's ruling.

The appellate court held that a person's reasonable, good faith belief
that his or her RDP was validly registered with the Secretary of State
entitled that person to the rights and duties of an actual registered
domestic partner - even where the partnership never was in fact registered
- under this equitable putative spouse doctrine.

However the court also restated the rule of putative spouses that the
question is tested by an objective standard - not just by what one party
believed, however genuinely. For instance, if both parties know that the
registration was never mailed neither can qualify as putative domestic
partners because without a belief in the mailing it would not be objectively
reasonable to conclude an RDP existed.

Parties who qualify for putative spouse and putative domestic partnership
status may be entitled to all of the benefits and burdens of marital partners
or RDP's. This includes rights to property acquired during marriage,
responsibilities for debt incurred during marriage, and support benefits.
You can get more information concerning those issues - which are largely
the same as if you were married persons - by using our search engine at
the top of the page.

The likelihood of your success depends a lot on what evidence you can
produce establishing that you reasonably believed the formalities were
complied with. If your former partner admits that you both completed the
document but that she never mailed it AND never told you that she hadn't
mailed it (unfortunately people tend to be dishonest about these things
in the face of legal proceedings), you are likely to prevail.

If she denies it and you don't have a copy of the registration papers
you need to look to other evidence to establish the basis for your belief
the two of you were registered - for instance, if a witness can testify
that your partner held herself out to be your RDP that may persuade a court.

Are there any other documents that were ever signed (i.e., applications
for benefits of any kind, joint bank accounts, trust documents or wills)
that make reference to your purported status? If so these should be collected
and submitted to the Court.

Finally, you still may have the basis for a civil Marvin claim which is
founded upon written or oral promises to undertake a joint asset pooling
arrangement or joint venture when two people decide to share lives (however,
your chances of recovering support or "palimony" are slim).
I will blog Marvin actions another day.

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